McGilvery v. City of Lewiston

• Citation: 13 Idaho 338,90 P. 348
• Parties: D. J. MCGILVERY, Appellant, v. THE CITY OF LEWISTON et al., Respondents
• Decision Date: 04 May 1907
• Court: United States State Supreme Court of Idaho

90 P. 348

13 Idaho 338

D. J. MCGILVERY, Appellant, v. THE CITY OF LEWISTON et al., Respondents

Supreme Court of Idaho

May 4, 1907

MUNICIPAL LAW-CITY CHARTER-SEWER DISTRICTS-SPECIAL ASSESSMENTS-LIEN OF ASSESSMENT-PAYMENT OF ASSESSMENT IN INSTALLMENTS-INTEREST ON INSTALLMENTS-BENEFITS RECEIVED FROM IMPROVEMENT-METHOD OF DETERMINING BENEFITS-ASSESSMENT ON LOTS AND NOT ON IMPROVEMENTS-PUBLICATION OF NOTICE-SERVICES OF ENGINEER.

1. Under the provisions of section 75 of the charter of Lewiston (Sess. Laws 1903, p. 105), the city council have authority to create and organize sewer districts and to levy assessments against all the lots and tracts of land within such districts for the payment of the expense of constructing sewer systems such assessments to be levied "in proportion to the benefits" to be received by the respective lots and parcels of land so assessed.

2. In imposing and levying special assessments within a sewer district for the purpose of meeting and defraying the expense of constructing a sewer system therein, it is both just and equitable that such assessments be imposed upon the land itself and not upon the improvements thereon. In such case the real and substantial benefit derived is to the "lots and parcels of land" and not to the improvements thereon.

3. There is no absolute standard of certainty that can be employed in arriving at the benefits to be received by any particular lot or parcel of land from the construction of a sewer or any other public improvement. Under the charter of the city of Lewiston (section 75), a determination of the manner and method of arriving at the benefits to be derived by any lot or parcel of land is left to the judgment and determination of the city council, and if in their judgment the topography of the district, the value and utility of the lots in the different sections of that district, the facility with which they are to be served, the relative demand and urgency for the improvement, and their nearness to or remoteness from the business or residence portion of the district require or demand the segregation of the entire sewer district into separate and distinct classes or subdivisions for the purpose of reaching a just and equitable assessment with reference to benefits, then there can be no valid objection to their doing so 4. Under the provisions of section 75 of the charter of Lewiston, it is competent for the city council to issue its sewer district warrants or bonds bearing interest at the rate of six per cent per annum, interest to be payable annually.

5. Where the city council have determined to make a sewer assessment payable in installments as authorized by the provisions of section 75 of their charter, and a property owner desires at any time to redeem his property from such assessment by paying the installments not yet due, he may do so by paying interest thereon to the date of payment of the installment.

6. Under the provisions of a city charter which provides that the cost of constructing a sewer system shall be assessed "on the lots and parcels of land benefited by any improvements in proportion to the benefits of said lots and parcels of land respectively," it is not necessary that the lots or parcels of land should abut on the sewer improvement in order to be subject to such assessment. It may not be benefited as much as property abutting on the sewer line, still, if within the district and capable of drainage by means of the improvement, it is subject to assessment in the proportion that the benefit it may receive shall bear to the benefits received by the other lots and parcels of land respectively, within the district.

7. Where the city council have determined to make the assessment payable in installments, they must make those installments equal.

8. Where a statute provides for the giving of "twenty days' notice" by publication in some newspaper, but does not specify any number of issues of the paper in which the notice shall be published, it is a sufficient compliance with the statute if the notice is published in one issue of the paper, and that publication occurs twenty days prior to the date of the meeting or other action of which the publication purports to give notice.

9. Where a city charter authorizes the creation of sewer districts and the levy of special assessments upon the lots and parcels of land to be benefited by the construction of a sewer system therein, and the statute provides that "the funds raised by such assessment shall be applied solely toward the payment of such improvements and construction and the redemption of the warrants and bonds issued therefor," a levy of the assessment is all the appropriation necessary to be made in order to make the fund available for the payment of the indebtedness incurred by the construction of the sewer system.

10. The services of an engineer in making surveys, preparing estimates, maps and plats of the proposed sewer district and preparing plans and specifications for a proposed sewer improvement, is a proper and legitimate part of the necessary expense of con- structing such sewer system and the expense thereof may properly be included in the assessment levied on the property within such district for that purpose.

(Syllabus by the court.)

APPEAL from the District Court of Second Judicial District for the County of Nez Perce. Hon. Edgar C. Steele, Judge.

Action by the plaintiff to secure an injunction against the defendants proceeding with the construction of a sewer system and incurring the expenses necessary therefor. Judgment for the defendant, and plaintiff appealed. Affirmed.

Judgment of the trial court affirmed. Costs awarded in favor of respondent.

Fred E Butler, for Appellant.

The charter of the city contains no express provision authorizing the construction of these sewers otherwise than upon a city obligation, and to incur such an obligation the matter should have been submitted to a vote of the people as required by section 3 of article 8 of the constitution.

The legislature of Idaho in 1901, expressly provided for the cities and villages in the state generally a means whereby they could issue obligations that are not city obligations and are limited solely to the lien of special assessments for their payment. (Laws 1901, p. 98.) This enactment shows a recognition in this state of the necessity of making such an express provision to authorize the incurring of such an obligation.

"The fact that the law creating a debt makes provision for a special tax to pay it does not limit the creditor's right of payment to the fund yielded by the special tax. He is a creditor of the municipality or other governmental division for the full amount of his debt, and is entitled to be paid in full, regardless of the amount yielded by the special tax, unless the contrary is expressly provided." (Gray on Limitations of Taxing Power and Public Indebtedness, sec. 2147; United States v. Clark County, 96 U.S. 211, 24 L.Ed. 628; United States v. Macon Co., 99 U.S. 582, 25 L.Ed. 331; Knox Co. v. United States, 109 U.S. 229, 27 L.Ed. 914, 3 S.Ct. 131.)

Not only is there no express provision in the city charter that it shall not be liable upon these obligations, but there is express provision indicating that it is to be liable. In subdivision 5 of section 75 of the charter (Laws 1903, p. 141) it is provided, with reference to sales of property for these delinquent assessments, that: "The city of Lewiston shall have the right to bid in said property at the public sale herein provided for, and the certificate of sale shall be issued to said city."

Why would the city be given authority to bid at such sale if it were not personally liable for the obligation, for the payment of which the sale was being made? Why should the city bid and receive the certificates of sale unless to indemnify it for obligations it had assumed? There is not a case in the statutory history of the country where a city, county or other municipality has been authorized to bid at a tax sale in a case where it was not personally liable for the liabilities for the payment of which the tax was being raised.

The council has no power to issue a bond which does not provide for a liability equal in degree with that provided by the charter. (Austin v. Seattle, 2 Wash. 667, 27 P. 559; United States v. Ft. Scott, 99 U.S. 152, 25 L.Ed. 348.)

There is no authority to assess the property of appellant and the other outlying lots which are not connected with the main sewer or any of the laterals thereof. (Vreeland v. Mayor, 58 N.J.L. 126, 32 At. 68; In re Park Ave. Sewer, 169 Pa. 433, 32 A. 574; In re Sewer on Beach wood Ave., 179 Pa. 490, 36 A. 209; Whitman v. City of Reading, 169 Pa. 375, 32 A. 576; Hanscom v. City of Omaha, 11 Neb. 37, 7 N.W. 739.)

They can be assessed only for the benefit and advantage which they will derive from the improvement, over and above their loss and damage; and such benefit and damage ought not to be speculative and distant, depending upon remote and uncertain contingencies, but it should be substantial, certain and capable of being realized within a reasonable and convenient time. (Matter of Fourth Ave., 20 N. Y. Com. Law, 452; City of Atchison v. Price, 45 Kan. 296, 25 P. 605; In re Morewood Ave., 159 Pa. 20, 28 A. 123, 132; City of Chicago v. Adcock, 168 Ill. 221, 48 N.E. 155; Thomas v. Grain, 35 Mich. 154, 24 Am. Rep. 535; New York Ry. Co. v. New Haven, 42 Conn. 279, 19 Am. Rep. 534; State v. Elizabeth, 40 N.J.L. 274.)

What are considered benefits: Abbott on Municipal Corporations, p. 843, sec. 348; McKivitt v. Hoboken, 45 N.J.L. 482; Taylor v. Palmer, 31 Cal. 240; People v. City of Brooklyn, 23 Barb. 166; Bowles v. Biddinger Co., 6 Ohio Dec. 871.

Eugene A. Cox, for Respondents.

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